In nominating a replacement for Supreme Court Justice Antonin Scalia, President Obama has provided plenty of indications that he is willing to go more than halfway in trying to find common ground with Senate Republicans.
But don’t bet that the Republicans will be in a compromising mood.
For several days this week, there was speculation that the president might nominate Nevada Governor Brian Sandoval, a relatively moderate Republican who The Washington Post notes “is aligned with Democrats on some key issues, including abortion rights and the environment. As governor, he has moved to implement the Affordable Care Act, and has said he considers same-sex marriage to be a settled issue.” Despite Sandoval’s mixed record on regulatory and labor issues, as well as reproductive rights, Senate minority leader Harry Reid, D-Nevada, talked up the Sandoval prospect. But the talk ended abruptly on Thursday, when Sandoval removed his name from consideration.
Sandoval recognized the reality of the circumstance set up by Senate Republicans. He was unacceptable to conservative purists. And he was not going to get a hearing from the hyper-partisan hypocrites who simply want to say “no” to this president.
That’s where this process gets complicated.
No one expects hardliners like Texas Senator Ted Cruz to accept a nominee who does not meet the senator’s extreme definition of acceptable conservatism. Indeed, as he bids for the Republican presidential nomination, Cruz is airing ads that declare: “Life, marriage, religious liberty, the Second Amendment. We’re just one Supreme Court justice away from losing them all.”
But Cruz is not the problem. An Obama Supreme Court nomination (supported by Democrats and a few reasonable Republicans) might be able to advance without the Senate’s most fanatical right-wingers.
The problem is with partisan hypocrites like Senate Judiciary Committee chairman Charles Grassley, the Iowa Republican who this week signed a letter (along with the other Republicans on the committee) vowing to “not hold hearings on any Supreme Court nominee until after our next president is sworn in on January 20, 2017.”
Minority leader Reid says that Grassley appears to be determined “to go down in history as the most obstructionist Judiciary chair in the history of this country.”
If Grassley follows through on his no-hearings pledge, he will also identify himself as, arguably, the most hypocritical Judiciary chair in the history of the country.
Grassley entered politics as a Republican midway through President Dwight Eisenhower’s second term. He has been there ever since.
Over the course of Grassley’s 57 years in the Iowa legislature, the US House of Representatives and the US Senate, prospective Supreme Court justices have been nominated in presidential election years. Prospective federal district-court judges and appeals-court judges have also been nominated. The Senate Judiciary Committee has held hearings on nominations. The Senate has debated nominations. The Senate has confirmed nominees.
Grassley knows this. He has been a part of the process.
In the early years of Grassley’s service in the US Senate, a Republican president’s Supreme Court nominee was considered in a presidential-election year. Though President Ronald Reagan nominated Justice Anthony Kennedy late in 1987, the Senate Judiciary Committee did not take the nomination up for formal approval until January, 28, 1988. When that vote took place, Grassley saw no problem. He led the charge to approve Ronald Reagan’s nominee.
In the new letter declaring that the Judiciary Committee will not even hold hearings on any Obama nominee, let alone a vote, Grassley and his compatriots argue advancing a nomination in 2016 because “we are in the midst of a great national debate over the course our country will take in the coming years. The Presidential election is well underway. Americans have already begun to cast their votes. As we mourn the tragic loss of Justice Antonin Scalia, and celebrate his life’s work, the American people are presented with an exceedingly rare opportunity to decide, in a very real and concrete way, the direction the Court will take over the next generation. We believe The People should have this opportunity.”
When the full Senate voted to confirm Kennedy on February 3, 1988, Grassley joined the majority without apology or objection (save for some of his usual griping about the American Bar Association). The senator did this despite the fact that, on the very next day, his fellow Iowans would participate in Republican and Democratic caucuses. Grassley even endorsed a favorite candidate in those caucuses, Kansas Senator Bob Dole.
But, now, after almost 60 years as an elected Republican—and after repeatedly swearing oaths to “support and defend” a US Constitution that says presidents “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…Judges of the supreme Court”—Grassley suddenly says be cannot consider a Supreme Court nomination in a presidential election year.
In fact, Grassley claims that “The fact of the matter is that it’s been standard practice over the last 80 years to not confirm Supreme Court nominees during a presidential election year.”
That’s simply wrong, as Grassley’s own experience illustrates.
But being completely wrong does not seem to brother Grassley. On Tuesday, in his role as chairman, he led Judiciary Republicans in signaling—as The New York Times put it—“that there would be no confirmation hearings, no vote, not even a courtesy meeting with President Obama’s nominee to replace Justice Antonin Scalia, all but slamming shut any prospects for an election-year Supreme Court confirmation.”
“Because our decision is based on constitutional principle and born of a necessity to protect the will of the American people, this Committee will not hold hearings on any Supreme Court nominee until after our next President is sworn in on January 20, 2017,” wrote Grassley and his compatriots.
There is no actual “constitutional principle,” nor is there any “necessity” to prevent committee consideration or or a full-Senate vote in an election year. There is only the partisan hypocrisy of Senator Charles Grassley.